In re V.J. , 2021 IL App (1st) 210978-U ( 2021 )

2021 IL App (1st) 210978-UOrder filed December 30, 2021
FIRST DISTRICT
FOURTH DIVISION
No. 1-21-0978
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re V.J., a Minor, ) Appeal from the
) Circuit Court of
Appellee, ) Cook County.
)
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) Nos. 17 JA 00460
)
v. )
)
Tracy J., ) Honorable
) Shannon O’Malley,
Respondent-Appellant.) ) Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court.
Justices Lampkin and Martin concurred in the judgment.
ORDER
¶1 Held: The orders finding the mother unfit to parent her minor daughter and terminating
the mother’s parental rights as to the daughter are affirmed where the court’s
findings of unfitness on the grounds of depravity, repeated incarceration, and failure
to make reasonable progress were supported by the manifest weight of the evidence.
¶2 Defendant-appellant Tracy J. (the mother) appeals from orders of the circuit court, which
determined that she was unfit to parent her daughter, V.J. and terminated the mother’s parental
rights. The circuit court’s determination of unfitness was based on findings that the mother had
No. 1-21-0978
failed to maintain a reasonable degree of interest, concern, or responsibility as to V.J.’s welfare,
subjected V.J. to extreme or repeated cruelty, failed to protect V.J. from an injurious environment,
was depraved, failed to make progress in the nine-month period after adjudication, and was
repeatedly incarcerated. On appeal, the mother argues that the circuit court erred in finding her
unfit on several of the asserted grounds. We affirm.
¶3 On May 22, 2017, the State brought a petition for adjudication of wardship as to V.J., a
minor who was born on November 11, 2011, against the mother and V.J.’s father Ronel H. (the
father) and a motion for temporary custody. The petition contended that V.J. was neglected or
abused pursuant to sections 405/2-3(1)(b) (injurious environment) and 405/2-3(2)(ii) (substantial
risk of harm) of the Juvenile Court Act (Act) (705 ILCS 405/2-3(1)(b), 2-3(2)(ii) (West 2016)). In
support, the State alleged that, on May 9, 2017, police were called to an apartment where the
mother and her two children, V.J. and her younger brother J.J., were present. A strong odor of gas
permeated the residence. The mother and the children were incoherent. The mother admitted to
taking prescription medications in order to overdose and also giving the medications to the
children. The mother told the police she no longer wanted to live. The mother was charged with
attempted murder of the children and was in custody at the Cook County Jail (CCJ). The
whereabouts of the father were unknown at that time.
¶4 The State supported the motion for temporary custody with the affidavit of Gwendoline
Adams, an investigator for the Illinois Department of Children and Family Services (DCFS).
Adams averred that the mother attempted to murder V.J. (then five years old) and J.J. (then two
years old) by placing a bag over their heads, rope around their necks, and giving them smoothies
and water, which contained medication. When found by the police, the children were incoherent,
and the gas burners of the stove were turned on but there were no flames. The mother is
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incarcerated, and the father has been absent from V.J.’s life. DCFS took protective custody of V.J.
J.J. was placed in the care of his biological father; they are not parties to these proceedings.
¶5 The court granted the motion and placed V.J. in the temporary custody of DCFS after
finding that probable cause existed that V.J. had been abused and neglected and there was an
immediate and urgent necessity to remove her from the mother’s care. The court appointed the
office of the Cook County Public Guardian as V.J.’s attorney and guardian ad litem (GAL). The
court would later appoint the office of the Cook County Public Defender to represent the mother.
¶6 The record on appeal includes May 9, 2017 records from St. Alexius Medical Center
(St. Alexius) for the mother and V.J. According to the records, the mother was feeling
overwhelmed and depressed and believed she was being exploited and disrespected by J.J.’s father.
Her actions on May 9 were preceded by berating text messages from J.J.’s father. The mother
reported two prior attempts at suicide. She was taking a high dose of Paxil, an antidepressant
medication. During her stay at St. Alexis, the mother was diagnosed with major depression which
was recurrent and severe but at that time was without psychotic symptoms. However, in the past,
the mother had hallucinations and psychotic decompensation. It was recommended that she be
placed in a psychiatric hospital.
¶7 V.J. was admitted to St Alexius through the emergency room after her exposure to natural
gas and ingestion of medication. Upon arrival, V.J. was drowsy. During the hospital stay, V.J. “had
one episode of bradycardia HR 50 with an unresponsiveness which resolved by Narcan IV.” V.J.
was discharged on May 11 and went home with her maternal aunt (the aunt) and maternal
grandmother (the grandmother).
¶8 After several status hearings and case management conferences, the court scheduled an
adjudication and a disposition hearing for May 17, 2018.
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¶9 On that date, the October 10, 2017 integrated assessment report and November 16, 2017
DCFS family service plan were filed with the court.
¶ 10 The report described the incident, the mother’s history, and the assessment as follows.
¶ 11 On May 9, the aunt and grandmother became concerned after receiving a disturbing text
from the mother and requested that police conduct a well-being check. The police and (later the
aunt and grandmother) went to the mother’s home. Upon entry, the police found a large bag of
pills and observed that the children had ropes around their necks but there were no noticeable
ligature marks. The gas burners of the stove were on and there was a smell of gas. The mother and
the children went in and out of consciousness. It was reported that the mother put crushed pills in
smoothies for both children, milk for J.J. and water for V.J.
¶ 12 During her assessment interview, the mother related that she has suffered with symptoms
of depression throughout her life and has a history of suicidal ideations. The mother has been
treated for depression and has been prescribed antidepressants, including Paxil. She suffered from
post-partum depression after the births of her children. In February 2015, she took medication in
an attempt to commit suicide and was hospitalized for psychiatric treatment. Later that year, she
was hospitalized again after acts of self-harm. After this second hospitalization, the mother failed
to complete recommended therapy. Subsequently, the mother’s primary care physician prescribed
psychotropic medication. In early 2017, the mother began outpatient treatment and was taking
Paxil. However, she was still feeling depressed and suicidal. While incarcerated at the CCJ, the
mother began treatment with the CCJ’s consulting psychiatrist and was taking medications. The
mother maintained that her overall mental health had improved, and she was not having thoughts
of self-harm.
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¶ 13 Prior to the incident which gave rise to this case, the mother once put a pillow on the
children’s heads and pushed down. The mother told V.J. that she and J.J. were going to sleep for
“180 years.” V.J. kicked and cried in response and the mother passed out.
¶ 14 During her assessment, the mother expressed care and concern for the children and showed
an understanding of their practical needs. She wants to be reunited with them and was willing to
comply with any recommended services.
¶ 15 The report indicated that the mother’s history of chronic mental illness prevented her from
parenting the children on a consistent basis and placed the children in significant danger. Her
symptoms of depression (“cycling in and out of good and bad days”) impair her ability to meet the
children’s needs. She suffers from feelings of rejection and anxiety and appears to have a limited
ability to cope with stress and change.
¶ 16 The prognosis for the mother to be reunified with V.J. was poor. For that goal to be
achieved the mother would need intensive and long-term intervention to address her extensive
mental health problems, stabilize her moods, and alleviate her suicidal and homicidal thoughts.
The report’s conclusion was that expedited termination of parental rights was in V.J.’s best
interests.
¶ 17 The report recommended that the mother continue to comply with her psychiatrist’s
directions, take all prescribed psychotropic medicines, and participate in individual trauma-based
therapy. No recommendation was made as to visitations in that there was a criminal court order
prohibiting the mother from contact with V.J.
¶ 18 The plan was developed by staff at Lydia Home Association (LHA) which was monitoring
the case on behalf of DCFS. The plan revealed that the mother remained in custody and was
receiving psychiatric services and medication. The mother was not engaged in the recommended
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services and could not have visitations with V.J. V.J. was living with her aunt. V.J. was doing well,
attending kindergarten, and had completed therapy.
¶ 19 For purposes of the adjudication hearing, the parties entered into a stipulation as to the
testimony of the grandmother, Hoffman Estate Police Officers Michael Barber and Jason Gessert,
Hoffman Estates Detective Richard Truman, and DCFS Investigator Jennifer Fryman.
¶ 20 The grandmother would testify that on May 9, 2017, she received a concerning text from
the mother who was upset about an argument with J.J.’s father. The grandmother and aunt tried
unsuccessfully to reach the mother by phone. They drove to the mother’s home and called the
police. When the police gained entry into the home, there was a smell of gas, and the stove burners
were on. V.J. told the grandmother that the mother put a rope around her neck, crushed pills into
her drink, and told her to drink it.
¶ 21 Officer Michael Barber would testify that on May 9 he and Officer Gessert went to the
mother’s apartment and found the door partially opened. A smell of gas was coming from inside
the apartment. The mother was lying on the floor behind an ottoman which barricaded the door.
The mother went in and out of consciousness, mumbled and could not keep her eyes open. J.J. was
stumbling back and forth and had a rope tied around his neck. J.J.’s eyes were glossy and rolling
to the back of his head. V.J.’s legs buckled when she stood. The mother told the police that she
took medications, and she did not want to live any more. In the kitchen, there were crushed pills
“next to a brown shake or smoothie of some kind.” The mother and minors were transported to
St. Alexus.
¶ 22 Officer Barber overheard a conversation between the mother and the attending physician
at St Alexius. The mother related that she was overwhelmed and wanted to end her life. She argued
with J.J.’s father the night before. The mother did not want the children to go with J.J.’s father
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when she died. She put a combination of the pills in a smoothie, but the children did not like the
taste and would not drink it. She then put medications in water and made the children drink it. The
mother put bags and ropes around the children’s heads and placed them in bed with her. When one
of the children became scared, she removed the bags and then fell asleep.
¶ 23 Officer Gessert would testify that after he and Officer Barber entered the mother’s home,
he found V.J. lying in a bed. She did not respond when he shouted at her. V.J. had clear fluid
coming from her nose and mouth. He brought her to get fresh air. The officer saw pills in the
kitchen; some pills were crushed.
¶ 24 Detective Truman interviewed the mother on May 10, 2017 at St Alexius. She was no
longer under the influence of medication. During the interview, the mother informed the officer
that on May 7, 2017, she sent J.J.’s father a text about his mental abuse and he sent a nasty text in
return. Upon reading it, she became overwhelmed with emotions and said to herself. “God forgive
me, but we need to be with [God].” She put medication (Clonazepan, Deazepam, Xanax, and
Propanol) in a smoothie for herself and the children. The mother told the children that they were
going to lay down on the floor, put bags on their heads and go to sleep. V.J. did not like the taste
of the smoothie. The mother then had the children swallow a Xanax pill.
¶ 25 Ms. Fryman spoke to V.J. on May 10,2017, after being assigned as the investigator to this
case. V.J. told her that the mother put a pill in a smoothie and forced her and J.J. to drink it. After
doing so, V.J. was unable to walk. The mother told them they were going to take a nap on the
floor. V.J. cried because she did not want to do that. A few days before this incident, the mother
put a pillow over the children’s faces and pushed down on the pillow so hard that V.J. began to
cry.
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¶ 26 Based on the stipulation as to the evidence, the circuit court entered an initial adjudication
order finding that V.J. was abused and neglected on grounds of an injurious environment and
substantial risk of physical injury. In a disposition order, the court found that the mother and the
father were unable for some reason other than financial circumstances to care for V.J. and placed
her in the guardianship of DCFS. In a permanency order, the court set a goal of return home
pending status hearing.
¶ 27 On March 27, 2019, DCFS filed a permanency hearing report which attached a November
6, 2018 service plan. The report stated that the mother had made unsatisfactory progress toward
the goal of return home. The mother was receiving individual counseling, group therapy, and
medication while incarcerated but was not able to undergo the recommended services. Because of
the no contact order in the criminal court, the mother had no visitations with V.J. The report
included a recommendation that the goal be changed to guardianship; both the mother and the
father agreed that guardianship was in the best interest of V.J. V.J. continued to live with the aunt
and grandmother and had a strong relationship with both of them.
¶ 28 On that date, the circuit court entered a permanency order setting a goal of substitute care
pending court determination of parental rights and finding this goal was in the best interest of V.J.
In its order, the court noted that the case had been pending for close to two years, the mother was
in custody and was prohibited from contacting V.J., and V.J. “deserved” permanency.
¶ 29 The State, on July 8, 2019, filed a supplemental petition for the appointment of a guardian
with the right to consent to adoption, seeking to terminate the parental rights of the mother and the
father and setting forth the basis of the mother’s alleged unfitness under section 50/1D of the
Adoption Act (750 ILCS 50/1(D) (West 2018)) and section 2-29 of the Act (705 ILCS 405/2-29)
(West 2018)). The State claimed the mother was unfit in that she had failed to maintain a
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reasonable degree of interest, concern, or responsibility as to V.J.’s welfare (750 ILCS 50/1(D)(b)
and 705 ILCS 405/2-29) (ground b)); committed extreme or repeated cruelty as to V.J. (750 ILCS
50/1(D)(e) and 705 ILCS 405/2-29) (ground e)); failed to protect V.J. from conditions in V.J.’s
environment which were injurious to her welfare (750 ILCS 50/1(D)(g) and 705 ILCS 405/2-29)
(ground g)); behaved in a depraved manner (750 ILCS 50/1(D)(i) and 705 ILCS 405/2-29) (ground
i)); failed to make reasonable efforts to correct the conditions which were the basis for V.J.’s
removal and/or failed to make reasonable progress toward V.J.’s return within nine months after
the adjudication of neglect or abuse under the Act or within any nine month period after said
finding (750 ILCS 50/1(D)(m)(i), (ii) and 705 ILCS 405/2-29) (grounds m(i) and (ii))).
¶ 30 On December 5, 2019, DCFS filed a permanency hearing report which attached the
October 28, 2019 family service plan. This permanency report indicated that the mother was
unable to participate in recommended services as she was incarcerated. She continued to receive
counseling, group therapy and medication while at the CCJ. The mother had not visited V.J. The
aunt was providing a safe and loving environment for V.J. and is willing to adopt V.J. V.J. wishes
to continue to live with the aunt and grandmother. The plan stated that V.J. was thriving with the
aunt. The mother’s CCJ mental health records revealed that the mother displays signs of major
depression, low self-esteem, and anxiety and is prescribed three medications for mental health.
¶ 31 In the criminal proceedings, on July 27, 2020, the mother pled guilty to two counts of
attempted murder as to the children and received a sentence of 11 years in prison. As a result, the
mother was transferred to the Illinois Department of Corrections (IDOC) in October 2020.
¶ 32 On May 27, 2021, the father was in court and filed a written final and irrevocable consent
to V.J.’s adoption by the aunt. After a hearing, the court found that the father had freely,
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voluntarily, and without influence consented to V.J.’s adoption. As a result, his parental rights
were later terminated. He is not a party to this appeal.
¶ 33 On that court date, the court held a permanency hearing. At the outset, without objection,
the court admitted the April 26, 2021 service plan and a court report dated May 26, 2021.
¶ 34 Katerina Kanavos, the LHA caseworker assigned to V.J.’s case since October 2020, was
called as a witness. She visited V.J. at the aunt’s house just a few days before the hearing on May
24, 2021. V.J. (then nine years old) was doing well, was current in her medical appointments, had
no medical needs, and was in third grade. The home was safe and there were no signs of abuse or
neglect. The aunt was committed to adopting V.J. and V.J. expressed that she wished to continue
to live with the aunt.
¶ 35 As to the mother, she was receiving limited services at the IDOC because of COVID-19
pandemic restrictions. The mother had no visitations with V.J. and DCFS/LHA staff had
determined that phone contact with the mother would not be in V.J.’s best interest.
¶ 36 Kanavos recommended that the goal remain substitute care pending court determination of
parental rights because V.J. is thriving with the aunt and is in a safe environment. The State and
GAL agreed with this recommendation. The mother’s attorney asked that DCFS/LHA be directed
to reconsider its decision to deny the mother phone contact with V.J.
¶ 37 The court found that it was in the best interest of V.J. that the permanency goal of substitute
care pending a determination of parental rights continue. Although the GAL stated that V.J. did
not want phone contact with the mother, the court asked that the issue be reconsidered by
DCFS/LHA.
¶ 38 The State, on June 7, 2021, filed a motion to amend the supplemental petition to add an
allegation that the mother was unfit in that she has been repeatedly incarcerated which prevented
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her from discharging her parental responsibilities (750 ILCS 50/1(D)(s) and 705 ILCS 405/2-29
(ground s)). After a hearing and over the mother’s objection, the court granted the State leave to
amend the supplemental petition.
¶ 39 The circuit court held a fitness hearing on July 12, 2021. At the hearing, the parties
stipulated that the mother pled guilty to attempted murder of V.J. and was now incarcerated in the
IDOC, with a projected release date of August 28, 2026.
¶ 40 As agreed by the parties, the following documents were admitted as evidence: the certified
record of the mother’s convictions for attempted murder of V.J. and J.J.; the integrated assessment
dated October 10, 2017; the service plans dated June 20, 2017, October 10, 2017, November 6,
2017, May 24, 2018, November 4, 2018, and April 9, 2019; and two contact notes, dated May
10,2017 and May 11,2021.
¶ 41 The service plans revealed that the mother had not engaged in individual trauma-based
therapy, had not participated in the Juvenile Court Assessment Program (JCAP), and had no
visitations with V.J.
¶ 42 Kanavos testified that, as the case worker for this matter, she developed the November
2020 and May 2021 service plans and discussed them with the mother during administrative
reviews over the phone. In both plans, the mother’s compliance with the recommended services
was found to be unsatisfactory. Kanavos could not verify that the mother was receiving services
at the IDOC. DCFS does not provide services to individuals imprisoned within the IDOC.
¶ 43 The criminal court order prohibiting the mother from having contact with V.J. was lifted
in October 2020. The mother requested a phone visit with V.J., but DCFS/LHA determined it was
not in V.J.’s best interest in that it was unknown whether the mother was in treatment and
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compliant with medications while at the IDOC. Later, when asked about a phone call with the
mother. V.J. told the agency that she did not want one.
¶ 44 On cross-examination by the mother, Kanavos explained that in April 2021, she learned
from the mother’s counselor at the IDOC that services at the prison were “limited” during the
pandemic. Kanavos did not ask which services were available and which were limited. According
to the counselor, the mother would not sign the necessary consents to allow DCFS/LHA to obtain
the mother’s IDOC records and verify her services. The mother told the counselor that Kanavos
had all the information she needed from her and the mother did not wish to speak with Kanavos.
The mother had signed consents for her CCJ records.
¶ 45 Malva Waters, the foster care director at LHA, testified that she has supervised the case
since its inception in May 2017. The mother’s integrated assessment recommended certain mental
health services and individual trauma-based therapy. The mother also was required to participate
in a JCAP. As supervisor, Waters reviewed the service plans and determined whether she
concurred with the recommendations. The mother never received an overall rating of satisfactory
on any service plan. The JCAP has not been done. The mother did engage in psychiatric services
and group and individual therapy at the CCJ, but those services did not meet the criteria of services
which had been recommended to correct the conditions that gave rise to the case. The mother
maintained that she continued to have psychiatric services at the IDOC, but without signed consent
forms, her treatment could not be confirmed. Additionally, while her criminal case was pending,
a court order prohibited the mother from having visits with V.J.
¶ 46 The court denied the mother’s motion for a directed finding that the State had failed to
meet its burden of proving any of the asserted grounds for unfitness. After the denial of the motion,
the mother presented her case.
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¶ 47 The court allowed the admission into evidence of the mother’s CCJ therapy notes from
July 2018 through May 2019 and from June 2019 through the end of 2019.
¶ 48 The mother testified that in August 2020, she received a birthday card that had been made
and signed by V.J. In 2021, she received a Mother’s Day card from V.J. which had a drawing of a
cat and a heart and the word “mom.” In return, the mother sent V.J. a letter.
¶ 49 In November 2020, during a case review meeting, the mother asked for visitation with V.J.
After the meeting, the mother felt defeated because she was prevented from asking about visitation
and there was nothing she could do.
¶ 50 In April 2021, the mother’s counselor at the IDOC gave her a blank consent form. The
consent form had no written indication that it was from Kanavos or LHA. She inquired of the
counselor but was “unable to determine what it was for and who it was from.” The counselor
indicated that the mother was not required to sign the form but could do so if she wished. The
mother “decided not to sign it, because [she] didn’t know who it was from and what it was for.”
No one ever told her that to have a phone call with V.J., she would have to sign the consent form.
¶ 51 While at the CCJ, the mother attempted to call LHA, but she could not be connected. She
later learned from a social worker that she could not make calls to outside agencies from the CCJ.
She assumed the same would be true at the IDOC and so never attempted to call LHA from there.
While at the CCJ, the mother would try to call the aunt at least once a month and managed to reach
her “a handful of times.” And she called the grandmother to learn how V.J. was doing.
¶ 52 At the IDOC, the mother speaks to a therapist at least once a month and each session lasts
up to 30 minutes. Because of the pandemic, “[e]verything else has been closed.” The mother and
the therapist talk about her stressors and how she could keep herself busy. A psychiatrist prescribes
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her medication. Her diagnosis is major depressive order with psychotic features and anxiety
disorder. The mother is a member of the prison’s residential council.
¶ 53 On cross-examination by the State, the mother testified that she did not remember trying
to poison or choke V.J. and J.J.
¶ 54 The mother stated that before the pandemic restrictions, she met with LHA caseworkers in
the courthouse after court calls. The caseworkers informed her that she was required to engage in
the recommended services.
¶ 55 Kanavos testified in rebuttal that she sent the consent form to the mother’s counselor at the
IDOC. The consent form had been filled out with the mother’s name, the information which LHA
was seeking and the purpose of the request. Kanavos’s practice was to send consent forms to an
IDOC counselor in order to assure that the individual in custody receives the form and the
counselor could answer any questions.
¶ 56 At the conclusion of the hearing, the court found the mother unfit, by clear and convincing
evidence, on the grounds that the mother had failed to maintain a reasonable degree of interest,
concern, or responsibility as to V.J.’s welfare (ground b); committed extreme or repeated cruelty
(ground e); failed to protect V.J. from an injurious environment (ground g); was depraved (ground
i); did not make progress in the nine-month period after adjudication (ground m(ii)); and was
repeatedly incarcerated (ground s).
¶ 57 The circuit court proceeded to a best interest hearing.
¶ 58 The aunt testified that she has had custody of V.J. since May 2017. At that time, V.J. was
5; now she is 9. The grandmother also lives in the home, and helps care for V.J. The aunt loves
V.J. and wishes to adopt her. V.J. is doing well in school and she and the aunt are involved in
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activities. If she was permitted to adopt V.J., the aunt would allow “[a]ny form of contact [with
the mother] that [V.J.] is comfortable with.”
¶ 59 Kanavos testified that the foster home was safe and appropriate. V.J. said that “she’s happy
where she’s at. She says that she likes living with her auntie and her granny.” The aunt and V.J.
are bonded.
¶ 60 Kanavos believed that termination of the mother’s parental rights was in the best interest
of V.J. The aunt wished to adopt V.J. and V.J. wanted to be with the aunt. The aunt was “a good
parental figure in [V.J.’s] life right now.”
¶ 61 The court ordered that the mother’s parental rights be terminated and appointed the DCFS
guardian administrator as V.J.’s guardians with the right to consent to adoption. The mother filed
a timely appeal.
¶ 62 On appeal the mother argues that the court erred in finding that she was unfit to parent V.J.
on the grounds of depravity (ground i), repeated incarceration (ground s), and failure to make
reasonable progress (ground m(ii)). She acknowledges that this court may affirm the unfitness
determination if only one of the findings is supported by clear and convincing evidence. The
mother nonetheless asks that “in the interest of justice,” the fitness and best interest orders be
vacated and the matter be remanded for new fitness and best interest hearings because the errors
“undermine the confidence in the outcome” of these proceedings.
¶ 63 The Act provides a “step-by-step” process for deciding whether a child should be removed
from his or her parents, made a ward of the court, and whether parental rights should be terminated.
In re Arthur H., 212 Ill. 2d 441, 462 (2004). After a petition for wardship has been filed and a child
has been placed in temporary custody, the circuit court first must determine whether a child is
abused, neglected, or dependent, before it conducts an adjudication of wardship and dispositional
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hearing. Id.; 705 ILCS 405/2-21(1), (2) (West 2018). The dispositional hearing and ruling on
wardship give “the parents ‘fair notice of what they must do to retain their rights to their child’ in
the face of any future termination proceedings.” In re J.B., 2018 IL App (1st) 173096, ¶ 26 (quoting
In re April C., 326 Ill. App. 3d 225, 237 (2001)).
¶ 64 Parental rights may be involuntarily terminated where: (1) the State proves that a parent is
unfit pursuant to one of the grounds set forth in section 50/1(D) of the Adoption Act and (2) the
trial court finds that termination is in the child's best interest. In re M.R., 393 Ill. App. 609, 613
(2009); 705 ILCS 405/1-1 et seq. (West 2018). The State bears the burden of proving by clear and
convincing evidence that a parent is unfit under a ground contained in section 50/1(D) of the
Adoption Act. In re D.F., 201 Ill. 2d 476, 494-95 (2002). Any single ground, properly established,
is sufficient for a finding of unfitness. Id. at 495. “Because the circuit court is in the best position
to assess the credibility of witnesses, a reviewing court may reverse a finding of unfitness only
where it is against the manifest weight of the evidence. A finding is against the manifest weight of
the evidence where the opposite conclusion is clearly evident.” (Internal citations omitted) In re
Deandre P., 405 Ill. App. 3d 945, 952 (2010). A reviewing court may not substitute its judgment
for that of the circuit court regarding the credibility of witnesses, the proper weight to be accorded
the evidence, or the inferences to be drawn therefrom. D.F., 201 Ill. 2d at 499.
¶ 65 On appeal, the mother does not challenge the findings of unfitness on grounds b, e, and g.
Additionally, she does not raise error in the court’s finding that the termination of her parental
rights as to V.J. was in V.J.’s best interest. The mother has forfeited any claims of error as to these
issues. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see also In re H.S., 2016 IL App (1st) 161589,
¶ 36 (failure to challenge the unfitness finding results in forfeiture of that issue on appeal). Based
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on the mother’s forfeiture, we may affirm the determinations that the mother was unfit to parent
V.J. and that termination of the mother’s parental rights is in the best interest of V.J.
¶ 66 However, the mother argues that the alleged errors as to the findings of unfitness on
grounds i, s, and m(ii) require that we reverse the orders finding her unfit and terminating her
parental rights. The GAL and the State respond that these findings are supported by the manifest
weight of the evidence and for this reason we will consider the mother’s arguments.
¶ 67 The mother first argues that the finding of depravity, ground i, was in error.
¶ 68 The Adoption Act provides that depravity is a ground for a finding of parental unfitness
and that a conviction for attempted first degree or second degree murder of a child “creates a
presumption that a parent is depraved which can be overcome only by clear and convincing
evidence.” 750 ILCS 50/1(D)(i). Once the certified copy of a conviction for attempted first degree
or second degree murder of a child is entered into evidence, a finding of unfitness would be
justified unless the parent overcomes the presumption of depravity by clear and convincing
evidence. See In re Donald A.G., 221 Ill. 2d 234, 239, 252 (2006). If the parent presents sufficient
evidence to rebut the presumption, the presumption is removed and the issue of depravity is
determined based on the presented evidence. In re L.J.S., 2018 IL App (3d) 180218, ¶ 18 (citing
In re J.A., 316 Ill. App. 3d 553, 562 (2000)).
¶ 69 The certified record of the mother’s convictions for attempted murder of the children gave
rise to a presumption of the mother’s depravity which could be rebutted only by clear and
convincing evidence. The mother contends that the circuit court ignored the evidence in the record,
which showed that “[t]he mother did not lead a life of crime or had pursued an advanced education,
participated in treatment and has the potential for rehabilitation.” The mother further argues that
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the convictions “resulted from mental illness rather than being a depraved person generally.” We
disagree with the mother.
¶ 70 A parent may rebut the presumption of depravity by showing they have been rehabilitated.
See In re Shanna W., 343 Ill. App. 3d 1155, 1167 (2003). The focus of the rehabilitation is on the
parent’s actions and history after the conviction. Id.¶ 71 The mother pled guilty and was convicted of attempted murder of the children who were
of very young ages. She attempted the murders by feeding her medication to the children in
different forms. The mother put bags over the children’s heads and tied the bags with ropes around
their necks. The burners of the stove were on at the time with no flames and gas permeated the
apartment. While the mother has serious mental health issues, she presented no evidence in rebuttal
to show what role her mental illness played in the attempted murders of the children. The mother,
on cross-examination, maintained that she did not remember her attempts to murder the children.
Her testimony lacked any showing of remorse for her criminal and harmful behavior.
¶ 72 Based on her assessment it was determined that the mother would need to complete
intensive treatment to achieve reunification. While incarcerated at the CCJ, the mother did
participate in treatment but never fulfilled the recommended individual trauma-based therapy or
the JCAP. More directly relevant to the issue of rehabilitation and ground s, after her convictions,
the mother refused to sign the consent forms for the release of her IDOC treatment records and her
treatment there has not been verified. As a result, LHA determined that the mother would not be
allowed to have phone visitations with V.J.
¶ 73 Throughout these proceedings, when V.J. was a child and needed her, the mother has been
incarcerated. The mother is projected to be released from the IDOC in August 2026, over four
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years from now. At that point, it will be over nine years since V.J. was taken from the mother’s
custody and V.J. will be almost 15 years old.
¶ 74 We conclude that the mother has not overcome the presumption of depravity by clear and
convincing evidence and even if the presumption had been rebutted, the evidence which was
adduced at the fitness hearing sufficiently established the ground s finding. We hold that the
finding of depravity was supported by the manifest weight of the evidence. See Shanna W., 343
Ill. App. 3d at 1167 (where court stated that rehabilitation “can only be shown by a parent who
leaves prison and maintains a lifestyle suitable for parenting children safely.”); In re T.S., 312 Ill.
App. 3d 875, 878 (2003) (father had not overcome presumption of depravity when he continued
to commit crimes and his children needed him).
¶ 75 Next the mother maintains that the finding of unfitness on ground s was in error as she was
incarcerated only one time and section 50/1D(s) of the Adoption Act requires repeated
incarcerations.
¶ 76 Under Section 50/1D(s), a parent may be found unfit due to repeated incarceration if:
“The child is in the temporary custody or guardianship of the [DCFS], the parent is
incarcerated at the time the petition or motion for termination of parental rights is filed, the
parent has been repeatedly incarcerated as a result of criminal convictions, and the parent’s
repeated incarceration has prevented the parent from discharging his or her parental
responsibilities for the child.” 750 ILCS 50/1D(s).
¶ 77 There is no disagreement that the mother was incarcerated at the time the petition for
termination of parental rights was filed. The mother’s position is that the circuit court’s ground s
finding is contrary to the “repeatedly incarcerated as a result of criminal convictions” language of
section 50/1(D)(s). We disagree.
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¶ 78 Section 50/1(D)(s) applies when the parent’s repeated “incarceration” prevents them from
discharging their parental responsibilities; the statute uses the singular form of incarceration. Our
Supreme Court in In re D.D., found that “the legislature’s use of the singular form to be both
deliberate and significant.” 196 Ill. 2d 405, 420 (2001). The Supreme Court explained:
“The singular term *** has a broader connotation. By using the singular form,
stating ‘the parent’s repeated incarceration has prevented the parent from discharging his
or her parental responsibilities for the child,’ the legislature makes reference to the general
inclusive concept of ‘repeated incarceration,’ suggesting that courts may consider the
overall impact that repeated incarceration may have on the parent’s ability to discharge his
or her parental responsibilities—circumstances which may flow from the fact of repeated
incarceration, such as the diminished capacity to provide financial, physical, and emotional
support for the child.” Id. at 420-21 (Emphasis in original).
In other words, “the overall impact of repeated incarceration is the touchstone of section 1(D)(s).”
In re Gwynne P., 215 Ill. 2d 340, 358 (2005) (citing In re D.D., 196 Ill. 2d at 420-21). Further,
“only one incarceration is necessary for a finding of unfitness under subsection 1(D)(s) if the court
finds the parent was prevented from discharging his responsibilities.” In re E.C., 337 Ill. App. 3d
391, 399 (citing In re D.D., 196 Ill. 2d at 420-22).
¶ 79 The mother’s repeated incarceration for her attempted murder convictions has prevented
her from fulfilling her parental responsibilities for V.J. and from caring for V.J.’s needs as a young
child. Her incarceration has hindered her from obtaining the required services and having contact
with V.J. The finding that the mother was unfit on ground s is not against the manifest weight of
the evidence.
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¶ 80 The mother’s final argument is that the circuit court’s finding as to ground m(ii) that the
mother failed to make reasonable progress within the nine-month period following the adjudication
of abuse and neglect (May 2018 to February 2019) is against the manifest weight of the evidence.
Again, we disagree with the mother.
¶ 81 Under section 1(D)(m)(ii) of the Adoption Act a parent’s failure to make “reasonable
progress” toward the return of their child during any nine-month period after an adjudication of
neglect or abuse supports a finding of parental unfitness. 750 ILCS 50/1(D)(m)(ii). Courts are to
consider evidence occurring only during the nine-month period at issue. In re J.L., 236 Ill. 2d 329,
341 (2010). “Reasonable progress toward the return of the child is judged on an objective standard
that focuses on the steps the parent has taken toward reunification.” H.S., 2016 IL App (1st)
161589, ¶ 27 (citing D.F., 332 Ill. App. 3d at 125). At a minimum, parents must make “measurable
or demonstrable movement toward reunification.” In re Daphnie E., 368 Ill. App. 3d 1052, 1067
(2006)). “Reasonable progress exists when a trial court can conclude that it will be able to order
the child returned to parental custody in the near future.” Id. Courts may consider the extent of a
parent’s compliance with service plans and regularity of visitations with the minor. In re Je. A.,
2019 IL App (1st) 190467, ¶ 63.
¶ 82 During the entire nine-month period following the hearing in May 2018, the mother was in
custody. The service plans during this period revealed that the mother had not engaged in
individual trauma-based therapy, had not participated in the JCAP, and had no visitations with V.J.
Although the mother participated in individual counseling, group therapy, and was taking
medication while at the CCJ, Waters testified that these treatments did not meet the criteria of the
services which had been recommended to achieve the mother’s reunification with T.J. The mother
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was prohibited from having any contact with T.J. and as a result there were no visitations of any
kind.
¶ 83 The mother acknowledged that she did not comply with the service plans, as the required
services were not available to her in the jail. She argues that had the services been available, she
would have engaged in them.
¶ 84 A parent’s incarceration is not evidence of the parent’s failure to make reasonable progress
but can impede progress toward the goal of reunification. Je. A., 2019 IL App (1st) 190467, ¶ 72.
Our Supreme Court has held that the time incarcerated does not toll the nine-month period in which
the parent must make reasonable progress. J.L., 236 Ill. 2d 329, at 341-342.
¶ 85 Here, the mother failed to take steps to complete the recommended services and was not
allowed visitations with T.J. The mother was impeded by her incarceration and the evidence
demonstrated that she failed to make reasonable progress toward the return of V.J. In summary,
there was no evidence to support a conclusion by the circuit court that V.J. was close to being
reunited with the mother in the “near future.” See Je. A., 2019 IL App (1st) 190467, ¶ 68 (citing
In re Jacorey S., 2012 IL App (1st) 113427, ¶21). The finding that the mother was unfit on ground
m(ii) is not against the manifest weight of the evidence.
¶ 86 The mother has failed to establish that the circuit court erred in finding her unfit as to
grounds i, s, and m(ii). Thus, there is no reason to consider her argument that she is entitled to new
fitness and best interest hearings in order to achieve justice in this case. We do note, however, that
the mother failed to cite any authority that would support her request.
¶ 87 For the foregoing reasons, the court’s orders finding the mother, T.J., unfit, and terminating
her parental rights are affirmed.
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